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Supreme Court of Tonga |
IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY
CR 107 of 2018
BETWEEN: REX
- Prosecutor
AND: ANDY FUKOFUKA
- Accused
BEFORE THE HON. JUSTICE NIU
Counsel: Ms. T. Kafa for prosecution
Mr. S. Tu’utafaiva for defence
Trial Date: 8 October 2018
Submissions of defence filed: 12 October 2018
Submissions of prosecution filed: 19 October 2018
Judgment Date: 13 November 2018
JUDGEMENT
The charge
[1] The accused is charged with 2 charges, namely that on 20 March 2018 at Fo’ui, he:
(1) was in possession of a .22 semi-automatic rifle without licence contrary to ss.4(1) and 4(2)(b) of the Arms and Ammunition Act, and
(2) did interfere with the course of justice by throwing away to hide the .22 rifle that was used to shoot Paula Nivinoa Vakaahi contrary to s.65 of the Criminal Offences Act.
[2] Section 4(1) of the Arms and Ammunition Act provides as follows:
“4 (1) No person shall possess, use or carry any arm or ammunition except under a licence in respect of each arm and such ammunition so possessed, used or carried and in accordance with the prescribed conditions of such licence.
(2) Any person who shall possess, use or carry any arm or ammunition without such licence shall be guilty of an offence and shall be liable on conviction in respect of every arm or the total amount of ammunition so possessed, used or carried -
(a) if the offence was committed in a prohibited area, to imprisonment for a term not exceeding 10 years;
(b) if the offence was committed elsewhere, to imprisonment for a term not exceeding 5 years.”
Evidence
[3] Only the prosecution gave evidence during this trial. The defence chose not to, and did not give any evidence.
[4] Witness Senior Constable Sioi Lousiale gave evidence that he, together with Inspector Taniela Vea and another constable, went to Vaiola Hospital. At the hospital he was directed to and he spoke to and took a statement of the accused who was already at but outside the hospital. He sat with the accused under a hibiscus tree and wrote the statement of the accused. That statement was produced as Exhibit 2.
[5] The material parts of that statement are as follows:
(a) The accused had asked his friend, Noa Vakaahi, if he knew of anyone from whom he could buy a .22 rifle because he had lost his rifle towards the end of last year, 2017, for which he had a licence and he had reported that to the police in charge of it.
(b) On the morning of 20 March 2018, Noa Vakaahi came to the accused’s home at Fo’ui with a .22 rifle for him to look at and the accused asked him whether it was “clean” and Noa just laughed.
(c) The accused’s wife cooked them some food and they ate. After that, the accused went out and mowed the lawn and when he stopped and went into his tool room, Noa was sitting on a chair there when he heard a bang and saw Noa with his legs out in front of him and saying “oo”. The accused said to him, “what?” Noa said to him, “It’s the gun”. The butt of the rifle was on the table but the body of the gun was not there. The accused thought that Noa was just joking, but when he went close to Noa, he then realised that Noa was injured on the right side of his chest, and that the rifle was lying by his feet. The accused then pressed his hand on the injury and carried Noa to the accused’s car and rushed him to hospital.
[6] Sioi Lousiale stated that he was among those who went to search for the gun in the bush area between Fo’ui and Masilamea, and that while others were left to do the search, he and Inspector Vea went to the accused’s house at Fo’ui and looked inside and saw no blood or gun or shell there. He said they then returned and joined the search. He said that the bush area they searched was about 10 metres wide and about 300 metres long along the north side of the road.
[7] Witness Inspector Taniela Vea gave evidence that after that statement was taken, he asked the accused where the gun was and the accused told him that he had thrown it into the bush area between Fo’ui and Masilamea when he was bringing Noa to the hospital. He said that he then, together with the accused and other policemen, went to that bush area and the accused pointed to the area into which he had thrown the gun, and they searched it but they did not find it. He said that he wrote in the diary of action in the file (Exhibit 1) the entry no.7, which reads:
“Do 07 Ip T. Vea conveyed to Andy Fukofuka the exhibit the
1200 hrs .22 rifle which was used to cause the injury and this person said that when he was rushing the injured person to hospital when he was injured, he threw the gun into the bush between Fo’ui and Masilamea and then continued to the hospital.”
[8] Inspector Vea said that when they could not find the gun in the bush, the accused told him that he would come with boys he would pay $20 to come and search for it. They then returned to the police station, where the accused vehicle had been returned from hospital, and the accused left in it. He said that when they arrested the accused a few days later, the accused told him that he and the boys had searched again but they still could not find the gun.
[9] Witness Kuli Falekaono, the police armourer, gave evidence that the accused was granted a licence to use a bolt action .22 rifle, a new rifle, on 4 November 2016 and it expired on 31 December 2016. That licence was renewed on 16 January 2017 and it expired on 31 December 2017. He said that on 19 January 2018, the accused had reported that that rifle was lost. He stated that since 31 December 2017, the accused had not held a licence to use or possess any arm. He produced a copy of the accused’s Firearms Register Card which showed those particulars (Exhibit 3).
Submissions of defence of the accused
[10] Mr. Tu’utafaiva for the defence submitted, in respect of count 1, (possession of arm without licence) that the prosecution has failed to prove beyond reasonable doubt that the accused was in possession on an arm without a licence because there was no arm in his possession and if there was an arm, the accused did not have physical custody and control of it. He also submitted that the charge is that the accused had in his possession “a .22 semi-automatic rifle” but there was no evidence that the accused had any such arm in his possession, and the prosecution did not seek any amendment to the charge. He submitted that the accused should be acquitted of count 1 for that reason alone. He further submitted that the prosecution must prove not only that the accused was in possession of a semi-automatic .22 rifle, it must also prove that the alleged .22 semi-automatic rifle was capable of discharging any shot, bullet or missile, as is required by the definition of arm in the Act, both of which the prosecution has failed to do.
[11] As far as possession was concerned, he submitted that the prosecution has failed to prove that Noa Vakaahi gave a .22 rifle to the accused and that entry no.7 of the diary of action (Exhibit 1) be not afforded much weight because:
(a) the accused was not under arrest and was not cautioned that such evidence be held against him;
(b) no. 22 rifle was found in the bush area they searched;
(c) Inspector Vea did not believe that the accused had thrown the gun in the bush because he and Sioi Lousiale went and looked for the gun in the accused’s house instead, although he left the others to search the bush area;
(d) the accused was not invited to read or to sign the entry no,.07 in the diary of action (Exhibit 1).
[12] As for count 2, Mr. Tu’utafaiva submitted that the accused be acquitted because:
(a) there was no evidence that Paula Nivinoa Vakaahi was shot with the .22 rifle alleged to have been thrown by the accused into the bush;
(b) the prosecution had stated in paragraph 6 of its opening remarks that “He (the accused) discovered that Noa had shot himself with the .22 rifle by accident,” which is contrary to what is alleged in the charge of count 2, and the victim Noa was not called as witness for some unknown reason.
He submitted that even if the Court accepted that the statement made by the accused as recorded in entry no.7 (but stated by Mr. Tu’utafaiva as entry no.6) was admissible, there was no interference by the accused with the course of justice because the rifle was not used to shoot Noa, as is alleged in count 2.
Submissions of the prosecution
[13] Ms. Kafa for the prosecution in reply submitted, in respect of the absence of proof that it was a .22 semi-automatic rifle that the accused had in his possession, as stated in the charge, that that was because the police could not locate it because the accused had thrown it away. But she says that it was capable of discharging a bullet because Noa was injured from a shot fired from it, and that meets the definition of arm in the Act.
[14] As to the question of possession, Ms. Kafa submitted that the accused himself admitted that himself in his statement Exhibit 2, that he admitted that he asked Noa for a .22 rifle to buy and that Noa came with it to his home at Fo’ui and shortly afterwards, Noa was shot with it at the accused’s home at Fo’ui. She submitted that the gun was effectively in the possession and control of the accused because he took and threw it away on his way to the hospital. She submitted that much weight be given to the entry in the diary of action because at that time the police had not had reasonable evidence or ground to charge him with any offence and were therefore not obliged to caution him before questioning him at the hospital.
[15] She also submitted that the gun belonged to the accused from the moment that he and Noa talked when Noa brought the gun to his house and there was strong inference from the accused’s actions that the gun belonged to him.
[16] As to the count 2, interference with the course of justice, Ms. Kafa submitted that the evidence was that Noa was shot with a .22 rifle, namely, the statement of the accused himself and also by the entry in the diary of action as well.
[17] As to stating in paragraph 6 of the opening remarks of the prosecution that Noa was shot by accident, she submitted it was not contrary to the particulars of the charge in count 2 because count 2 does not allege that someone else shot Noa.
[18] She disagreed with Mr. Tu’utafaiva and submitted that entry no.7 in the diary of action be given much weight because it contains what the accused himself spoke, and that the accused threw the gun away because he knew that a crime had been committed, namely that he had no licence to possess such arm and that was why he threw the gun away. She submitted that he did that in order to interfere with the police investigation of how Noa was injured.
[19] Finally she submitted that the accused knew that he had in his possession a .22 rifle and that it was capable of discharging a bullet because Noa was injured as a result of that, and that he knew that he had no licence to possess it as the police armourer stated in his evidence.
Consideration of the count of possession of arm without licence
“a .22 semi-automatic rifle”
[20] Mr. Tu’utafaiva submits that the indictment charges the accused with having had possession of a .22 semi-automatic rifle but there has been no evidence of any .22 semi-automatic rifle in the possession of the accused, and the prosecution did not seek any amendment of the charge. He submitted that the charge be dismissed for that reason alone.
Further direction to counsel
[21] On 29 October 2018, I issued a further direction notice to both counsel as follows:
“1. Whilst considering my judgement in this case, I found that:
(a) the English version of the indictment has the word “semi-automatic” whilst the Tongan version does not have it or its equivalent translation;
(b) the committal letter from the Magistrate Court listed that “Tatau ‘oe tohi fekau CR132, 133, 135/2018” were attached to the letter but CR135/2018 was not attached;
(c) the summons CR132/2018 is a charge that the accused had possession of a “me’a fakalongolongo’i ‘oe longoa’a (silencer)” which is not a charge with which we are concerned in this trial;
(d) the summons CR133/2018 is a charge of “Liliu ha fakamo’oni maumau ai kupu 138(3) Lao ki he Polisi Tonga fika 33 ‘oe 2010, ‘aia ko ho’o tolongi ‘a e 1 me’afana rifle.22 ki he loto vao ka koe fakamo’oni mo ‘ene taumu’a ke mole”;
[22] The matter was not heard on 31 October because for some reason Ms. Kafa did not receive the notice at all and was only given it in Court when she was called to attend. Mr. Tu’utafaiva handed up the accused’s summons no.135/18 and the matter was adjourned to 8 November for both counsels to make their further submissions.
Summons no.135/2018
[23] The summons no.135/2018 was a summons for serious causing of harm to Paula Nivinoa Vakaahi by shooting him in the right chest causing him paralysis with a .22 rifle, contrary to s.107(1)(4)(a) of the Criminal Offences Act. Both counsel confirmed to me that that charge was already disposed of in the Magistrate’s Court by the prosecution offering no evidence and it being dismissed.
Difference in the English and Tongan versions of indictment
[24] Ms. Kafa submits that the Tongan version of the indictment should be the one used in this trial because that was the version that was read to the accused and to which he pleaded in Tongan, not guilty. The charge that was read to the accused and to which he pleaded not guilty to was that he was in possession of a .22 rifle without a licence, not a .22 semi-automatic rifle without a licence. Accordingly, the prosecution does not have to prove that what he had in his possession was a .22 semi-automatic rifle. It only had to prove that the accused had in his possession a .22 rifle and that the prosecution had proved that.
[25] And even so, regardless of the difference in the versions of the indictment, she submitted that the prosecution has proved that what the accused had in his possession was an arm without a licence because it was capable of discharging a bullet because the victim was injured by a bullet fired from it.
[26] Mr. Tu’utafaiva submits that the proposed use of the Tongan version instead of the English version now is prejudicial to his client because he had run the defence of the accused on the English version. He stated that until I pointed it out in my further notice, he had not been aware there was such a difference.
[27] I have to say that Mr. Tu’utafaiva did question the armourer as to his estimate of the weight of a “semi-automatic” .22 rifle and I would accept that he has run the defence on that point.
Charging an offence in indictment not committed from Magistrate’s Court
Summons no.132/2018
[28] Summons no.132/2018 is a charge that the accused had possession of a “silencer” without licence contrary to s.4(2)(b) of the Arms and Ammunition Act. That charge was committed by the Magistrate’s Court to this Court because it found there was sufficient evidence to commit that charge for trial in this Court.
[29] The prosecution did not and does not charge the accused with that offense in this Court at all. Instead, it charges the accused with possession of a .22 semi-automatic rifle (as in the English version) or a .22 rifle (as in the Tongan version) contrary to the same provision (s.4(2)(b)) of the Act.
[30] Mr. Kafa submits that the Attorney General, acting as Director of Public Prosecutions, has the authority to decide which charge to charge the accused in the indictment so long as it arises from the same facts (evidence) upon which the accused is committed to this Court.
[31] Mr. Tu’utafaiva disagrees with that. He says that there is no provision in the laws of Tonga which confers upon the Attorney General/Director of Public Prosecutions any such authority. He submits that the charge committed was that of possession of a part of a gun, namely, a silencer, without licence, not that of a gun such as he is now charged in this Court. He submits that this Court cannot try the accused on a charge that was not committed from the Magistrate’s Court.
Summons no.133/2018
[32] Summons no.133/2018 is a charge that the accused tampered with evidence at the crime scene by throwing a .22 rifle into the bush to cause it to be lost but which was evidence, contrary to s.138(b) of the Tonga Police Act 2010. That charge was committed by the Magistrate Court to this Court because there was sufficient evidence to warrant it.
[33] The prosecution did not and does not charge the accused with that offence in this Court at all. It charges the accused in this Court with interference with course of justice under s.65 of the Criminal Offences Act instead, but with the same particulars, namely, by throwing away the .22 rifle into the bush to hide it.
[34] Ms. Kafa submits that the Crown has the authority to charge the accused with the offence under s.65 of the Criminal Offences Act, although that offence was not charged in the Magistrate Court, because it arose from the same facts upon which the charge under the Tonga Police Act was committed to this Court.
[35] Mr. Tu’utafaiva disagrees and submits there is no such authority for the Crown to do that. He further submits that whereas s.65 of the Criminal Offences Act provides: “Every person who conspires or attempts to interfere wrongfully in any manner with the course of justice ...” the charge against the accused in count 2 is that he “did interfere with the course of justice...”, which is not the offence under s.65. He also points out that whereas the sentence under s.138 of the Tonga Police Act is $500 fine and 6 months imprisonment, the sentence under s.65 of the Criminal Offences Act is 4 years imprisonment. He submits that that makes these 2 offences totally different and the Crown cannot therefore charge such a heavier penalty offence than that committed from the Magistrate’s Court.
Cases in Supreme Court must be committed from Magistrates Court
[36] The criminal cases to be tried in the Supreme Court must be committed from the Magistrate’s Court. Clause 103 of the Constitution provides for that. It provides as follows:
“103. The Legislature shall determine the time and place for holding the Courts and shall limit the powers of the Magistrates in criminal and civil matters and shall determine what cases shall be committed for trial to the Supreme Court.”
The use of the words “shall be committed” means that it is mandatory that the cases within the jurisdiction of the Supreme Court shall be committed for trial in the Supreme Court by the Magistrate’s Court. In other words, the Supreme Court has no jurisdiction over a case within its jurisdiction unless it is committed from the Magistrate’s Court.
[37] The reason for that is to ensure that persons charged with serious offences (within the jurisdiction of the Supreme Court) are afforded the opportunity of listening to the evidence that is brought to prove the charge against them, in the Magistrate’s Court first, before the same evidence is given in the Supreme Court at their trial there. At the same time, the Magistrate may dismiss the charge if he finds that there is not sufficient evidence (a prima facie case) to put the accused person on trial in the Supreme Court. By doing that, the Supreme Court does not become a court of preliminary inquiry (such as the Magistrate is) to see if there is a sufficient case to be tried before it. Time and costs are saved thereby.
[38] Once a case is committed to the Supreme Court, the Crown (the prosecution) prepares and files and serves the indictment of the charge against the accused. The charge must be of the offence committed from the Magistrate’s Court, because that is the “case” committed from the Magistrate’s Court. It must not be a charge for an offence that was not committed from the Magistrate’s Court because such a new charge is not the case that was committed from the Magistrate’s Court.
[39] The Supreme does not have jurisdiction to try a case unless that case and the charge of the offence in that case was committed from the Magistrate’s Court. Otherwise the constitutional safeguard and protection afforded to accused persons are thereby removed, wrongfully.
[40] Clause 13 of the Constitution must not be interpreted to mean that as long as a charge or an offence is charged in the indictment, it must be lawful to try a person upon a charge or offence which was not committed from the Magistrate’s Court. Such an interpretation would violate clause 103 as above stated, and the safeguard and protection afforded thereunder to the accused person is rendered meaningless. That must not be allowed to be done.
Count 1 not committed from Magistrates Court
[41] Count 1, the charge that the accused had possession of a .22 semi-automatic rifle without licence/or of a .22 rifle without licence (as in the Tongan version) is a totally different offence from the offence committed from the Magistrate’s Court. The offence committed from the Magistrate’s Court is the accused had possession of a “silencer” without a licence.
[42] The prosecution has failed not only to charge the accused with that offence, but has also failed to call or produce any evidence that the accused had possession of a silencer, let alone without a licence.
[43] The fact that a silencer is an accessory of a gun, and is therefore an arm by definition under the Act, cannot justify the substitution of that accessory (silencer) with “a .22 rifle” instead. A silencer is not a gun. It is perfectly harmless on its own. It is not capable of propelling any bullet. A .22 rifle is a very different thing altogether because it is lethal. That is a much more serious case than the mere possession of a silencer on its own.
[44] Accordingly, I find that the charge of possession of a .22 semi-automatic rifle, or of a .22 rifle, without licence, as contained in count 1 of the indictment, is one in respect of which no committal was made by the Magistrate’s Court, and is dismissed.
Count 2 not committed from Magistrate’s Court
[45] Count 2 is the charge under s.65 of the Criminal Offences. There was no such charge in the Magistrate’s Court at all and no such offence was committed from the Magistrate’s Court to this Court. Accordingly, it is also dismissed.
Orders
[46] Accordingly, I order that the charges against the accused are dismissed and that he is discharged forthwith.
L.M. Niu
NUKU’ALOFA: 13 November 2018 J U D G E
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